Soldatovas v.Wawanesa Mutual Insurance Company, 2023 ONSC 3440

COURT FILE NO.: DC-22-368-00

DATE: 20230607

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Vitalis Soldatovas (Appellant)

AND:

Wawanesa Mutual Insurance Company (Respondent) and the Licence Appeal Tribunal

BEFORE: McWatt A.C.J.S.C., Backhouse and Howard JJ.

COUNSEL: Ramendeep Minhas, for the Appellant

Paul Omeziri and Darrel March, for the Respondent

Sabrina Fiacco, for the Licence Appeal Tribunal

HEARD: June 5, 2023, at Toronto, by videoconference

ENDORSEMENT

BACKHOUSE j.

Overview

[1] This is an appeal and request for judicial review by the appellant of a decision dated February 15, 2022 and a reconsideration decision on June 6, 2022, both by Adjudicator Rebecca Hines of the Licence Appeal Tribunal (“LAT”). The decisions denied the appellant’s request for income replacement benefits under the Statutory Accidents Benefits Schedule, O. Reg. 34/10 (“SABS”) and to an award under s.10 of R.R.O. 1990, Reg. 664 (the “Regulation”).

[2] The appellant challenges the decisions on the grounds of procedural fairness, reasonableness and a failure to consider key evidence amounting to an error of law.

[3] The court has jurisdiction to hear the statutory appeal pursuant to ss. 11(1) and (6) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (“LATA”), but only on a question of law.

[4] At the outset of the hearing, the court advised that it did not consider it necessary for the court to exercise its jurisdiction to hear the application for judicial review concurrently with the appeal. The appellant’s central concern is whether the Adjudicator failed to take relevant evidence into account when rendering the Decision. Whether characterized as a breach of procedural fairness or an error of law, this is a question of law that can form the subject of a statutory appeal pursuant to s. 11(6) of the LATA. Between this and the court’s broad remedial jurisdiction on appeals, there is no need to hear the application for judicial review. Hearing the application in this case would undermine the statutory scheme and the extraordinary nature of judicial review itself, as the statutory appeal already before the court is an adequate alternative remedy.

Factual Background and Decision of the LTB

[5] The appellant was involved in a motor vehicle accident on September 12, 2016. The Respondent denied his subsequent application for benefits and a catastrophic impairment (“CAT”) designation pursuant to the SABS.

The LAT Dismisses the Appellant’s Appeal

[6] The LAT conducted a seven-day hearing in which the appellant called four witnesses, including a psychiatrist and an occupational therapist. Voluminous medical records were filed. The parties were informed at the beginning of the hearing and provided several opportunities throughout to direct the Adjudicator to relevant evidence, including by entering documents as exhibits.

[7] The Adjudicator determined:

(i) the appellant did not sustain a catastrophic impairment;

(ii) the appellant was not entitled to accident benefits, including income replacement benefits (“IRB”); and

(iii) the appellant was not entitled to an award for unreasonably withheld or delayed payments under s 10 of the Regulation and/or interest on any overdue payment.

[8] For purposes of the appeal, the Adjudicator’s decision on (ii) and (iii) is what is relevant.

[9] The Adjudicator found that in the absence of a reason for the respondent’s denial of the IRB, the insurer’s examination provided enough evidence to show the appellant’s psychological impairment created a substantial inability to carry out the essential tasks of his employment. This met the substantive test for an IRB. However, the lack of financial records to show a sustained loss of income left the Adjudicator unable to determine the quantum of IRB payable. As a result, she found the appellant failed to prove on a balance of probabilities that he had sustained loss of income resulting from the accident.

[10] The Adjudicator found the appellant was not entitled to an award under s. 10 of the Regulation for unreasonably withheld or delayed payments because he did not make any submissions or refer to any evidence relevant to this issue.

The LAT Upholds the Decision on the Appellant’s Request for Reconsideration

[11] The appellant filed a request for reconsideration by the same Adjudicator, alleging she breached the rules of procedural fairness and erred in law by failing to consider essential evidence on the issue of his entitlement to an IRB. The evidence in question consisted of income tax records from 2015 to 2019. The Adjudicator dismissed the request. Although these documents were part of the appellant’s extensive document brief, he had failed to comply with her direction to identify key evidence as an exhibit or to make closing submissions on its relevance to the issue of entitlement. The parties were given multiple reminders and opportunities to do this. It was neither a breach of procedural fairness nor an error of law that she did not search for those records despite the appellant’s failure to direct attention to them. The Adjudicator dismissed the appellant’s other arguments challenging the Decision as improper attempts to re-litigate the issues.

Standard of Review

[12] Appellate standards of review apply to the statutory appeal. As the appeal is statutorily restricted to questions of law, the applicable standard is correctness, including for questions of procedural fairness.[^1]

Analysis

Issue 1: Was there a Breach of Procedural Fairness?

[13] The appellant submits the Adjudicator’s failure to consider relevant financial documents when determining the issue of his entitlement to an IRB was a violation of procedural fairness. Having ruled that he satisfied the substantive test on the medical records provided, the Adjudicator’s incorrect finding that there was an absence of evidence to show a sustained loss of income was determinative of the issue. This in turn impacted the decision on an award for withheld payments.

[14] During the hearing, the Adjudicator directed the parties to make specific references to the evidence they intended to rely upon and to enter documents as exhibits. A proceeding is procedurally fair where the parties have an opportunity to fully argue their case. The appellant was given ample opportunity to enter evidence in support of his claim for an IRB. He failed to do so, despite multiple reminders from the Adjudicator. There is no breach of procedural fairness.

Issue 2: Did the LAT err in law by Failing to Consider Financial Documents in its Possession Relevant to the Issue of the Appellant’s Entitlement to an IRB?

[15] The appellant submits that his document brief at the hearing before the Adjudicator contained his income tax returns, notice of assessment and balance sheet for several years. Although the document briefs were voluminous, the documents were organized with indices and tabs that clearly identified the documents. He argues that the Adjudicator’s failure to consider the financial documents was not only a breach of procedural fairness but an error of law.

[16] Further, the appellant submits that past decisions of the LAT make clear the relevance of CRA records to the determination of quantum when considering a claimant’s entitlement to an IRB. By not considering these records when they were readily available, and by not exercising her discretion to request such records given their demonstrated relevance, the Adjudicator erred in law. But for this error, the appellant’s entitlement to an IRB would have been made out. The Adjudicator again erred when she refused to consider the records on the request for reconsideration.

[17] There is no merit to the appellant’s submissions. The record in this matter is voluminous; the tribunal’s record of proceeding is over 7,400 pages long. The appellant failed to identify documents in his document brief and failed to enter them into evidence, having been specifically directed by the Adjudicator to do so. The Adjudicator repeated these instructions a number of times, including giving the appellant the opportunity to make documents into exhibits during his closing submissions, which he declined to do.

[18] The appellant had the burden of proof to establish his entitlement to IRB. In the case of a self-employed person whose income was in issue as the appellant’s was, one would normally expect that corporate financial statements and corporate tax returns would be necessary to prove entitlement to IRB. In this case, the respondent had hired an accountant who requested certain documents from the appellant to prepare an accounting report. As only some of the requested documentation was provided, no report was prepared by the accountant. I do not accept the appellant’s submission that the financial records in the appellant’s document brief would have been sufficient to establish his entitlement to an IRB, had they been considered by the Adjudicator. While each case turns on its own facts, the caselaw does not support that income tax returns by themselves are all that is required to establish an entitlement to IRB in the case of a self-employed person whose income is in issue. This ground of appeal is dismissed.

Issue #4:Did the LAT err in law by not granting an award under [s. 10](https://www.canlii.org/en/on/laws/regu/rro-1990-reg-664/latest/rro-1990-reg-664.html) of the [Regulation](https://www.canlii.org/en/on/laws/regu/rro-1990-reg-664/latest/rro-1990-reg-664.html)?

[19] The appellant submits that in failing to consider the financial records and in failing to grant his entitlement to an IRB, the Adjudicator committed a further error in law by failing to grant an award for up to 50% of an unreasonably withheld IRB.

[20] There is no merit to this argument. The denial of an IRB was justified and reasonable based on the appellant’s repeated failure to provide sufficient documentation. Further, the appellant would still need to demonstrate that the respondent’s denial of the benefit was unreasonable in order to establish an entitlement to an award under s. 10 of the Regulation. This is a high threshold, which was not met in the circumstances where the appellant did not make any submissions or refer to any evidence relevant to this issue.

Conclusion

[21] For these reasons, the appeal is dismissed.

Costs

[22] The appellant and respondent agreed that $11,000 was the appropriate amount to award the successful party. Neither party produced a bill of costs. This was an uncomplicated appeal which did not take the half day for which it was scheduled. In my view, costs of $5000 is a more appropriate amount to award the successful party. The respondent, Wawanesa Mutual Insurance Company, as the successful party shall be entitled to costs in the amount of $5000. The LAT does not request costs and none are awarded.

Backhouse J.

McWatt A.C.J.S.C.

Howard J.

Date: June 7, 2023

[^1]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 36-37; Housen v. Nikolaisen, 2002 SCC 33, at paras. 8-10; Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, at para. 30 (majority’s reasons) and 177-79 (dissenting reasons).